Viewpoint: Why Artificial Intelligence will change the game for the music biz

March 20th 2017 at 1:03PM

As Artificial Intelligence continues to evolve as a technology, it presents all new opportunities and challenges, both legal and creative, for the music industry. Here, Gregor Pryor, co-chair of Reed Smith's Entertainment & Media Industry Group, explains what may be at stake...

In a recent keynote, Elon Musk, a man not known for his backwards view of business, suggested that humans will increasingly need to merge with machines.

Artificial intelligence (intelligence exhibited by machines; “AI”) continues to experience rapid growth, evident from last year’s record levels of investment in the industry. But what does this mean for music? From a legal and regulatory perspective, a number of issues arise.

As AI technology gets smarter, it will further revolutionise music recommendation processes with increasingly personalised playlists and algorithmic discovery re-shaping consumption patterns.

By selecting your next track, AI software can effectively dictate which artists go from 100 to 100,000 fans and which may never get a claim to fame.

This in turn already shapes labels’ revenues and market shares.

Machine-learning based technology is being used to drive fan engagement via music-focused chatbots. It assists in discovery by enhancing streaming services’ cataloguing capabilities and supports talent-spotting by trawling heaps of data to identify up-and-coming online artists.

The music industry is also slowly embracing algorithm-generated compositions, such as Sony’s Flow Machines project, which has successfully created two entire pop songs. Sony’s full AI-written pop album is expected later this year.

Currently, human input is still required to set the parameters, prompt the style or polish the machine’s final product. However, as technology advances, it is conceivable that computers could go on forever creating their ‘own’ music.

AI is challenging a number of legal assumptions, too. In the UK, computer-generated works can enjoy copyright protection. In those situations, the author is taken to be the “person by whom the arrangements are necessary for the creation of the work are undertaken”.

Among lawyers, there is consensus that for computer-generated works, it is the programmer who devises the rules and logic used to create such works that owns the copyright.

That said, cases considering this subject are scarce and outdated. Arguably, a fully autonomous artificially intelligent device will create music without human input and could, in theory, be the true ‘author’ of creative works as a matter of fact.

Equally interesting is the question of liability. While AI creators could be held strictly liable, they may not necessarily have foresight of the actions that these systems may take.

Depending on the functionalities, it may be that the burden of liability could be shifted to the end-user that deployed the AI in a way that wreaked havoc.

One thing is certain, in an age of increasingly powerful AI, the chain of causation may be difficult to follow. Neither the user nor the creator may have complete oversight of the machine’s actions.

For the music industry, this means that adoption of algorithm-generated music may give rise to a number of copyright infringement cases.

Existing legislative landscapes were not designed with AI in mind and, while the law captures AI at a high level, legislative coverage is not ideal.

Dearth of precedent means that any deals involving AI technology will require attentive drafting which considers all stakeholders, including the programmers, original creators (from whom the AI draws its inspiration), intended content owners and any end-users.

In any agreement governing the use of AI-generated music, provisions on ownership, licensing, assignment of rights and warranties regarding non-infringement of third party rights should be drafted carefully. The age of real robot artists may not be so far away.